Teamsters Local Union No. 676

TEAMSTERS LOCAL UNION NO. 676 683 Teamsters Local Union' No. 676 and Shell Chemical Co., a Division of Shell Oil Company. Case 4-CD-282 October 11, 1972 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Shell Chemical Co., a Division of Shell Oil Company, hereinafter Shell, alleging that Teamsters Local Union No. 676, hereinafter Respon- dent or Local 676, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Shell to assign the work in dispute to an employee represented by Local 676 rather than to its own employees. A hearing was held on May 18, and June 2, 1972, before Hearing Officer Charles E. Mitchell. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Shell and Local 676 filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record, the Board makes the fol- lowing findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Shell is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED We find, as stipulated by the parties, that Local 676 is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED DISPUTE A. The Facts The work in dispute concerns assignment of the task of driving a 1-1/2 ton stake-body truck making personnel and equipment deliveries at Shell's Wood- bury plant located in West Deptford, New Jersey. The dispute centers around a former employee of Catalytic Construction Co., a subcontractor of Shell, which performs certain maintenance work at the plant. The employee, Pollinger, drove the truck and made Catalytic personnel and equipment deliveries at the plant; occasionally he also operated a forklift. Shell trained its own employees to perform certain of the maintenance work and then withdrew from Cat- alytic the use of its truck and forklift. Faced with diminished work to be performed for Shell, Catalytic reduced its work force and laid off several employees, including the truckdriver, who was laid off on Decem- ber 9, 1971. Shell's own employees now use the truck for various purposes. Shell employs no employee clas- sified as a driver, but rather 40 to 50 different employ- ees do occasional driving of the truck as required and Catalytic employees now walk to their jobsites and equipment deliveries, as needed, are handled by other means. At the present time, Catalytic still employs 14 or 15 employees at the Shell plant. Catalytic is a party to a collective-bargaining agreement with the Respondent. The terms of the agreement cover Pollinger and require Catalytic to obtain its truckdrivers from Respondent. On December 13, 1971, Respondent' s business agent, Jackson, unsuccessfully protested to Catalytic Pollinger's layoff and on December 21 wrote a letter to Shell which stated in relevant part: On behalf of Mr. Pollinger, we request that he be permitted to remain on the job performing his duties as before, and the terms of the Team- sters Local 676 Agreement covering him be per- mitted to remain in effect. On December 29, 1971, Shell replied suggesting that Respondent direct to Catalytic its request that Pollinger be reinstated. Thereafter, on January 20, 1972, the Respondent set up a picket line and picketed the Shell plant with signs for 22 days until February 11, 1972. The picket signs read: Shell Unfair to Wil- liam Pollinger/Unfair to Teamsters Local 676. On January 26, the Respondent wrote Shell a letter stating that it was not seeking recognition from Shell as Pollinger's bargaining agent, but adding: We simply request that you employ Mr. Pollinger under similar conditions with similar duties to those he enjoyed while employed by his former employer. Thereafter, on January 27 and on February 1, respectively, Shell filed the present Section 8(b)(4)(D) charge and amended charge. Meanwhile, on December 22, 1971, Oil, Chemi- cal & Atomic Workers International Union, hereinaf- ter OCAW, filed a representation petition in Case 4-RC-9546 for a unit of Shell's Woodbury plant em- 199 NLRB No. 95 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees. On February 9, 1972, the Board conducted an election at the plant in a unit of production and maintenance employees, including those employees performing maintenance work formerly performed by the laid-off Catalytic employees. Respondent did not intervene or participate in any manner in that pro- ceeding. OCAW was subsequently certified on June 16, 1972, soon after the hearing on the present charges, as the representative of the Shell employees, but has not at any time claimed the truckdriver job. B. The Contentions of the Parties Respondent contends that the picketing was not occasioned by, nor is it a manifestation of, a jurisdic- tional dispute. It argues that the dispute between it and Shell was over the recapture of work for a dis- placed employee, Pollinger. Shell contends that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the Board should sustain Shell's assignment of the disputed work to its own employees by the is- suance of an appropriate award. C. Applicability of the Act Before the Board may proceed to a determina- tion of dispute under Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We are un- able to reach such a conclusion in this case. The present dispute is in significant respects sim- ilar to that which existed in Waterway Terminals Com- pany, 185 NLRB No. 35, where the Board held that the picketing of Waterway "was solely for the object of preserving the carloading work for the employees who had been doing it ... and that such a dispute is not the type of controversy Congress intended the Board to resolve pursuant to Section 8(b)(4)(D) and Section 10(k) of the Act." Here, Respondent picketed for an objective-to regain work for a former Catalyt- ic employee who had previously performed such work. Accordingly, we find that no jurisdictional dis- pute exists and we shall therefore quash the notice of hearing.' ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. ' See Transport Workers' Union of America, AFL-CIO and Local 504 (Tri- angle Maintenance Corp.), 186 NLRB No. 71, Safeway Stores, Incorporated 134 NLRB 1320, cf National Maritime Union (Prudential-Grace Lines, Inc), 194 NLRB No. 199, where the NMU, which represented the crews on the employer's east coast fleet, claimed the work and attempted to follow the transfer of certain vessels of that fleet to the employer's west coast fleet, on which its crews were represented by another union which consequently threatened to strike The Board found that the NMU, by attempting to follow the transfer of the vessels , was not attempting to protect and preserve work which had traditionally been performed by its members , but rather was attempting to acquire work which it had never performed, and that therefore there was reasonable cause to believe that activity by the NMU violated Section 8(b)(4)(D). Member Penello agrees that no jurisdictional dispute exists and the notice of hearing should be quashed , but finds it unnecessary to rely on Waterway Terminals Company, supra, because, in his view, the record here fails to establish either competing claims between classes of employees or any dispute over the assignment of particular work